On October 5, 2021, the New York State Department of Environmental Conservation (“Department” or “DEC”) released water quality guidance values for three emerging compounds, PFOA, PFOS and 1,4-Dioxane (collectively, “Emerging Compounds”).  The comment period for the draft guidance values runs until November 5, 2021.  Comments can be issued to the Department at 625 Broadway, 4th Floor, Albany, NY 12233-3500, ATTN: Michelle Tompkins or by email to AWQVinformation@dec.ny.gov.

The proposed guidance values were developed and proposed in support of the continuing efforts to protect the State’s drinking water supplies from Emerging Compounds.  As stated by the Commissioner of the New York State Department of Health (“DOH”), “New York State has adopted among the most protective drinking water quality standards and requirements for testing, notification and remediation for emerging contaminants nationwide.  Our research and efforts to safeguard drinking water will be further enhanced by the Department of Environmental Conservation’s move to regulate these compounds at their source, providing even more confidence in the water quality that reaches your tap.”

According to the Department, Emerging Compounds are ubiquitous in the environment due to their widespread use, persistence and anti-degradation properties.  PFOA and PFAS are used in fire-fighting foams and consumer products for their ability to resist heat, oil, stains, grease and water.  They are found in, among other things, water-repellent clothing, furniture, adhesives, paint and varnish, food packaging, heat-resistant non-stick cooking surfaces and insulation of electric wires. 1,4-Dioxane is largely used as a solvent stabilizer for chemical processing, but other uses include consumer cosmetics, detergents and shampoos.

DOH routinely touts its adoption of the nation’s lowest maximum contaminant level (“MCL”) for Emerging Compounds. Notably, DEC’s proposed guidance values are even more stringent than the drinking water MCLs.  The Department’s purpose in establishing even more rigorous standards is, “to protect source waters and provide an extra margin of safety to complement the drinking water MCLs by ensuring they are not exceeded, which could result in costly treatment for the regulated community.”

The proposed ground and surface water guidance values for Emerging Compounds are as follows:

  • PFOA – 6.7 parts per trillion (ppt)
  • PFOA – 2.6 ppt
  • 1,4-Dioxane – 0.35 parts per billion (ppb).

To place these standards in context, the Assistant Secretary of the Navy (Energy, Installations and Environment) webpage describes ppb as, “the equivalent of one drop of impurity in 500 barrels of water or one cent out of $10 million.”  It describes ppt as, “the equivalent of one drop of impurity in 500,000 barrels of water or traveling 6 inches in the 93-million-mile trip towards the sun.”

The regulation of Emerging Compounds as hazardous substances in 2017 and the 2020 adoption of drinking water MCL for Emerging Compounds by the DOH triggered numerous, well-publicized disputes among water providers, contaminant manufacturers and property owners.  It will be interesting to monitor the development and anticipated promulgation of even more restrictive ground and surface water quality values and how the regulated community responds.

Those interested in commenting on the proposed guidance values should be sure to issue comments to the address listed above in advance of the November 5, 2021 deadline.

In Matter of O’Connor and Son’s Home Improvement, LLC v. Acevedo, et al., the petitioner, O’Connor and Son’s Home Improvement, LLC (“Petitioner”), owns a 120-foot by 57-foot parcel of property (the “Property”) located in the City of Long Beach (the “City”) on Long Island, which it purchased in 2015.  In or around June, 2016, Petitioner submitted an application to the City’s Zoning Board of Appeals (the “ZBA”) to subdivide the Property into two equal-size lots of 60 feet by 57 feet.  However, the City’s zoning code requires a minimum lot size of 80 feet by 57 feet for each of the two proposed parcels in Petitioner’s application.  Thus, Petitioner sought area variances to permit the lot sizes of 60’ x 57’, as proposed in the application.

At the ZBA hearing, Petitioner argued, inter alia, that its two proposed structures were consistent with most of the other homes in the neighborhood, while one larger structure on the undivided single lot was not.  However, before Petitioner’s counsel could continue offering arguments in support of the application, members of the ZBA expressed their opposition thereto, with one member even going as far as to accuse Petitioner’s counsel of negligence for not having an engineer inspect the Property.

Petitioner’s main argument centered on the fact that prior to its application, the ZBA granted variances to another property located in the same zoning district and nearly identical to Petitioner’s Property, permitting the subdivision of that property into two separate lots.  Additionally, Petitioner pointed out that more than half of the houses on the same street as its Property have frontages less than 60 feet.  Therefore, Petitioner argued that its two proposed lots with 60-foot dimensions would not change the character of the neighborhood.

After Petitioner’s counsel concluded its argument to the ZBA, members of the public were given the opportunity to be heard.  The public overwhelmingly opposed the application, arguing, inter alia, that the proposed variances would cause parking problems and diminish home values.

The ZBA ultimately denied Petitioner’s application.  Petitioner then commenced an Article 78 proceeding challenging that denial.  The Court granted the petition, annulling the ZBA’s determination and directing issuance of the variances.  The ZBA appealed to the Appellate Division, Second Department.

Although local zoning boards are afforded broad discretion in deciding land use applications, a reviewing court may set aside such determination “‘where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613).”  Further, “‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,’ and thus, ‘[w]here an agency reaches contrary results on substantially similar facts, it must provide an explanation’ (Matter of Nicolai v McLaughlin, 163 AD3d 572, 574 . . .).”

The ZBA’s determination lacked facts sufficient to justify its denial of the application.  In particular, the ZBA failed to reconcile its denial of the variances here with its grant of variances to a different applicant in a nearly identical prior application.  Additionally, the Court held that the ZBA’s findings were based on general community opposition to Petitioner’s application not corroborated by any evidence, which is an insufficient basis for denial.  Accordingly, the Second Department affirmed the lower court’s Decision and Order annulling the ZBA’s determination and directing the ZBA to issue the variances.

On September 2, 2021, Governor Kathy Hochul signed legislation (S.50001/A.40001), which includes a number of statutory protections and other emergency public health measures adopted in response to the recent increase in the transmission rates of the COVID-19 Delta variant.  One of the measures effectively suspends provisions of the Open Meetings Law and allows local government meetings that are normally held in person to be held remotely instead.  The new law essentially reinstates the same rules first imposed by Governor Andrew Cuomo’s Executive Order 202.1 issued on March 12, 2020.  That Order was extended several times until June 25, 2021, when the State of Emergency ended.

Under Part E of the new law, a public body may meet and take action without permitting in-person access to meetings.  Instead, public bodies are authorized to hold public meetings remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceedings and that such meetings are recorded and later transcribed.  Meetings can be held either over a video service such as Zoom or by phone.  The new law does not change the requirement that public bodies provide advance notice to the public that a meeting is taking place.  However, the notice for a virtual meeting must inform the public how to access the public meeting.

In a press release issued on the same day that the legislation was signed, Governor Hochul stated:

“Let’s be clear—the COVID-19 pandemic is not over, and I’ve heard from government officials across the state who are concerned about the inability of their constituents to access public meetings virtually . . . This commonsense legislation extends a privilege that not only helps New Yorkers participate safely in the political process, but also increases New Yorkers’ access to their government by allowing for more options to view public meetings. This law will continue to bolster the open and transparent style of government that we’re committed to maintaining in the Empire State.”

Unlike during the State of Emergency when in-person public meetings were prohibited by the Executive Order banning large public gatherings, the new legislation gives public bodies the option of holding meetings in-person or virtually.  However, because of the temporary nature of the law, they will only have that option until January 15, 2022, which is the date when the law is set to expire.

In May 2021, the Supreme Court ruled in Territory of Guam v. United States, 593 U.S. __ (2021), on the issue of whether a settlement resolving environmental liabilities was sufficient to establish a right of contribution for a settling-party against a non-settling responsible party pursuant to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C §9613(f)(3)(B).  The Court held that to trigger contribution rights under CERCLA 113(f)(3)(B), settlement must resolve a CERCLA-specific liability.

Guam v. US arises from a dispute regarding environmental responsibility for the Ordot Dump – described as a “280-foot mountain of trash,” that at various times was owned and operated by both the US Navy and Guam.   The Navy constructed the dump in the 1940’s and allegedly disposed of hazardous waste at the dump for several decades.  Ownership of the dump was later ceded to Guam.  Upon discovery of the environmental contamination emanating from the Dump and Guam’s non-compliance with environmental regulations, EPA sued Guam pursuant to the Clean Water Act, alleging Guam was discharging wastes to the waters of the United States.  Ultimately, a consent decree was entered between EPA and Guam in 2004, terminating the litigation (the “Consent Decree”).  As part of the Consent Decree, Guam was required to pay a civil penalty and perform certain remedial tasks. The Consent Decree documented that Guam’s compliance was in full settlement and satisfaction of the claims of the United States as alleged in the compliant; claims made under the Clean Water Act.

In 2017, Guam seeking to recover the costs of cleanup in response to the Consent Decree, sued the United States pursuant to CERCLA.  Guam forwarded two-theories; (1) cost recovery under CERCLA §107(a) — seeking recovery against a person that at the time of disposal of hazardous substances owned or operated the disposal facility, and (2) a contribution action under CERCLA §113(f)(3)(B), authorizing a party that has resolved its liability to the United States for costs associated with a response action to seek contribution from a responsible party that has not settled its liability.

The DC Circuit found that Guam’s CERCLA §107(a) claim could not proceed if Guam could assert a contribution claim pursuant to CERCLA §113(f)(3)(B).  The Circuit then held that Guam’s CERCLA §113(f)(3)(B) claim was time-barred as the 3-year statute of limitations for the contribution claim began to run with the 2004 Consent Decree.

In its arguments before the Court, Guam withdrew from its CERCLA §113(f)(3)(B) claim.  Guam argued that it never established a contribution claim because it had only resolved its liability under the Clean Water Act, and to establish a contribution claim, settlement must have been CERCLA-specific.  Therefore, Guam contended, it was free to pursue cost recovery under CERCLA §107(a).  The Court agreed, parsing the “reticulated statutory matrix of environmental duties and liabilities,” its “interlocking language and structure,” to conclude that, “CERCLA contribution requires resolution of a CERCLA-specific liability.”

From Guam’s perspective, the result was equitable, and they may now pursue recovery from one of the alleged responsible parties.  From a practice perspective, Guam v. US, helps to clarify how and when contribution rights are established.

The facts at issue in Elpa Builders, Inc. v. State of New York are relatively straightforward.  The property owner (the “Owner”) owned a 53,645-square-foot parcel of property (the “Property”) along New York State Route 347 (“Route 347”) in the Town of Smithtown.  The Property is improved with a commercial building and is subject to a long-term ground lease with Taco Bell.

In 2015, under the exercise of its constitutional eminent domain power[1], the State of New York (“NYS”) acquired two strips of land adjacent to Route 347 and its crossroad on the Property.  The taking totaled just over 3,100 square-feet of land.  Although the taking did not affect the Taco Bell restaurant on the Property, it reduced the Property’s frontage and parking space, and resulted in the removal of three large trees.

As compensation for the taking, the Owner accepted an advance payment of $302,460 from NYS.  The Claimant also signed an agreement with NYS.  The agreement provided that if the Claimant sought to have the amount of compensation determined by the Court of Claims (the “Court”), then NYS would be awarded the difference between the advance payment and the amount determined by the Court in the event that the latter was less than the former.

Approximately six months after the taking, the Claimant commenced an action in the Court of Claims which sought $2 million from NYS as just compensation for the taking.  The Court ultimately determined the appropriate amount of just compensation to be $283,920.  Thus, the Court awarded NYS $18,540, that amount representing the difference between the advance payment and the court-determined amount.  The Claimant appealed, arguing that the Court’s award to NYS violates the Claimant’s constitutional right to just compensation.

In determining the value of just compensation to be provided for a government taking of property, the Court’s objective is to put the property owner “‘in the same relative position, . . . as if the taking had not occurred’ [citations omitted].”  Generally, for a partial taking of property, the Court will try to determine the fair market value of the property as a whole, both prior to and after the taking, using the difference as its measure of damages.  The Appellate Division, Second Department concluded that the Court properly considered all evidence, did not improvidently exercise its discretion, and reached a reasonable determination concerning the Property’s value.

The Second Department also rejected Claimant’s argument that the $18,540 repayment back to NYS violates its right to just compensation.  The prior agreement between the parties and the language of Eminent Domain Procedure Law (“EDPL”) § 304(H) belies Claimant’s argument.  EDPL § 304(H) provides:

“When an advance payment to a condemnee made pursuant to this section by the condemnor exceeds the award of the court for that property, the court shall, on motion, enter judgment in favor of the condemnor for the amount of such excess and appropriate interest. . . .”

Thus, not only is NYS entitled to the $18,540 difference pursuant to the parties’ agreement, but EDPL § 304(H) itself requires it.

Accordingly, the Second Department rejected the Claimant’s arguments and affirmed the Court’s award.

Takeaway:  Property owners receiving advance payment for a government taking of land must be cognizant of the potential consequences of electing to have a court determine just compensation.  Sometimes, it may be wise to accept the advance payment and refrain from seeking court intervention.

[1] Eminent domain is the power of a governmental authority to appropriate private land for public use, provided it pays the property owner just compensation therefor.

The Town Board of the Town of Southampton adopted the Hampton Bays Downtown Overlay District (“Overlay District”) Form Based Code by Town Board resolution 2020-288 on February 25, 2020 with the support of a Supplemental Generic Environmental Impact Statement (“SGEIS”) Findings Statement.  The intent of the Overlay District was, in part, to “prepare Hampton Bays for redevelopment.  The Town is now seeking to build upon existing planning efforts in a manner that is consistent with the needs and desires of a vibrant year-round community.  This includes the encouragement of a mix of retail stores, service-related businesses, restaurants, workforce and senior housing options, along with improved transportation infrastructure, pedestrian pathways and public green spaces throughout the downtown area. The strategy to create a Hampton Bays Downtown Overlay District represents a comprehensive response to community needs and objectives defined in many planning and policy documents adopted by the Town Board…”   The Town had conducted a study in 2013 entitled the Hampton Bays Corridor Strategic Plan and Cumulative Impact of Build-Out Study (Corridor Study) and adopted a Findings Statement in connection with the Hampton Bays Generic Environmental Impact Study (“GEIS”) by Town Board Resolution 2013-1024.  In 2016, the Town conducted community meetings and an online survey to get community input for the design of the Hampton Bays Business District.  In June of 2017, the Town published a planning “pattern book” for the business district.  Drawing upon its prior environmental review, in September of 2018, the Town prepared the SGEIS which was supposed to update the GEIS adopted in connection with the Corridor Study to serve as a basis for the proposed Overlay District. As referenced above, in February 2020, the Town Board adopted a findings statement pursuant to that SGEIS and the Overlay District law.

A neighboring property owner, Gayle Lombardi (“Petitioner”) brought an Article 78 Proceeding challenging the adoption of the Overlay District in Lombardi v. Town of Southampton, Index No. 1883-2020, dated July 21, 2020.  Specifically, Petitioner alleged that the adoption violated the New York State Environmental Quality Review Act (“SEQRA”) by (i) relying on outdated and incomplete facts regarding the public water supply in the SGEIS, (ii) segmenting the environmental impact assessment of the Overlay District from the Corridor Study in preparation of the SGEIS, (iii) permitting substandard off-street parking under the Overlay District, (iv) failing to consider reasonable alternatives to the Overlay District, and (v) allowing standalone multifamily and 3.5 story buildings resulting in increased density in violation of the principals and policies in the Town Code. The Court agreed.

In its determination, the Supreme Court set forth the standard for reviewing an agency’s compliance with the substantive mandates of SEQRA stating that courts review the final EIS to “determine whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination.”  Specifically, the Court found that the Town Board adopted the SGEIS while a State Superfund site investigation of the contamination of certain Hampton Bays Water District water supply wells located within the Overlay District boundary was still pending. While the SGEIS noted the contaminated wells, it stated that the Town Board should continue to support efforts by the NYSDEC to remediate soil and groundwater contamination from the Superfund site.  The Court found this improper stating, “deferring resolution of the remediation is improper as it shields the remediation plan from public scrutiny.”  The Court also found that the Town Board failed to consider a ten year capital plan for the Hampton Bays Water District which raised concerns related to the public water supply and, as a result, failed to take the requisite “hard look” at this area of environmental concern.

Petitioner also claimed that the SEQRA review was improperly segmented because the build out based on the zoning permitted under the newly adopted Overlay District was significantly greater than the projected build out under the previously adopted Corridor Study.  The Court found that the Overlay District was “clearly a part of the Corridor Plan so “the SGEIS improperly segmented the assessment of the plans by not sufficiently evaluating the cumulative impacts of all phases of the plan.”  The Court found that the remaining issues raised by Petitioner were properly addressed by the Town.  Regardless, the Court granted the Article 78 Petition and annulled Town Board’s adoption of the Overlay District, SGEIS and Town Board Resolution No. 2020-288 rendering the Hampton Bays Downtown Overlay District Form Based Code null and void.

Determining the width of a right-of-way may be more difficult than you think, even when the dimensions are specifically defined.  New York courts take the approach that elevates the right of passage over full use an easement described by deed.

Recently, in Grosbard v Willow Lane, LLC 192 AD3d 773 [2d Dept. 2021], the Second Department confirmed that a right-of-way for purposes of ingress and egress merely grants the dominant estate owner (easement holder) the right of passage over the servient estate (land owner), but not unfettered use of the entire easement area described in its deed.

In this case, the plaintiff’s property was burdened by an express easement that benefited the defendant’s property.  The easement, granted as part of a 1959 subdivision, was described in the deed as “an easement of right of way for ingress and egress over a Private Road 35 feet in width.”  The metes and bounds description were recorded.

In February 2014, the plaintiffs acquired their property.  In July 2014, the defendants acquired their property.  At that time, a dirt and gravel driveway, approximately 10 feet in width, provided access to defendant’s property.  Soon after their purchase, defendants began clearing a previously wooded section of the easement, moving the 10-foot-wide driveway to the eastern edge of the easement and then landscaping the remaining 25-foot section of the easement.  Litigation ensued.

The plaintiffs sought a judgement declaring that the easement area only entitled defendants to a reasonably necessary right of passage, and no right to widen the right-of-way. In their answer, defendants asserted a counter claim seeking, inter alia, a judgment declaring that they were entitled to utilized the entire width and length of the easement.

The Appellate Division, in affirming the trial court, concluded that although the easement provided for “ingress and egress over a 35-foot right of way,” over a portion of plaintiff’s property should be limited to the 10-foot roadway, since defendants failed to establish that driveway was inadequate for the expressly stated purpose intended by the grantee in creating the easement.  The court held that the grant of a right-of-way for ingress and egress over a defined easement is merely the “grant of a convenient way, within those limits.”

This brief ruling reaffirms the balance between landowner’s rights and an easement holder’s right of passage.



In Riedman Acquisitions, LLC v Town Bd. of Town of Mendon, 194 AD3d 1444, 2021 NY Slip Op 02952 [4th Dept 2021], the Appellate Division, Fourth Department, addressed several significant issues concerning land development projects: (i) reversionary zoning, (ii) mandatory and discretionary site plan review, (iii) sewer agreements, and (iv) due process and equal protection rights. Ultimately, the Court ordered the Town of Mendon (“Mendon”) Town Board to consider the developer’s preliminary site plan.

A. Factual Background

Petitioner-Plaintiff Ryan Homes, Inc. (“Ryan Homes”) proposed to develop a patio home community on an 87-acre parcel situated within Mendon (“Project”). Ryan Homes commenced development of the in 2004 when Ryan Homes submitted a series of conceptual sketch plans to the Mendon Planning Board. Due to the Project’s high density, Ryan Homes sought and obtained rezoning of a majority of the parcel from Residential Agricultural-5 Acres (“RA-5”) to Planned Unit Development (“PUD”). The Project would also require a sewer connection.

In 2005, the Mendon Planning Board approved the Project’s preliminary site plan. In September 2006, Mendon and the Town of Pittsford (“Pittsford”) entered into a Sewer Transmission Agreement and Maintenance Contract (“2006 Sewer Agreement”) to connect the Project to the Pittsford’s sewer system. Pursuant to its terms, the 2006 Sewer Agreement would continue in full force and effect for 40 years, and could only be changed, modified or amended by mutual assent.

Five years later, in 2011, the Mendon Planning Board granted final approval for the first phase of the Project – subject to conditions which, if not met by Ryan Homes, would result in the approval’s expiration. After Ryan Homes obtained several extensions of time to suffice these conditions, in April 2015, Ryan Homes announced it would not proceed with the Project due to economic infeasibility. In December 2017, however, Petitioner-Plaintiff Riedman Acquisitions, LLC (“Riedman,” together with Ryan Homes, “Petitioners”) purchased the parcel from Ryan Homes with the intent to revive the Project. Petitioners requested confirmation from the Mendon Town Board and Mendon Planning Board that the parcel remained zoned for PUD, and that revisions would be submitted for approval under former Mendon Town Code (“Code”) Section 200-17(G) (governing requests for changes to sketch plans).

Around the same time, the Mendon Town Board Supervisor unilaterally declared the 2006 Sewer Agreement null and void, and asked Petitioners for a new agreement. Petitioners, the Mendon Town Board and Pittsford attempted to negotiate a new agreement (“2018 Sewer Agreement”). In June 2018, the Mendon Planning Board issued a favorable report on Petitioners’ revised sketch plans – conditioned on approval of the 2018 Sewer Agreement. In July 2018, however, the Mendon Town Board concluded the parcel’s zoning reverted to RA-5 because the PUD zoning had been conditioned on sufficing the conditions of approval, which deadline expired in 2015.

Petitioners objected to the Mendon Town Board’s conclusion regarding reversion, and argued the parcel’s rezoning was unconditional and that Petitioners were never warned about the possibility of reversion. Petitioners also requested the Mendon Town Board approve the 2018 Sewer Agreement. In August 2018, the Mendon Town Board amended the Code to remove PUD zoning and, in January 2019, voted against the 2018 Sewer Agreement. The Mendon Town Board took no further action on the Project’s revised application.

B. Petitioners’ Hybrid Action-Proceeding, and Judgment

Petitioners commenced this hybrid action-proceeding challenging the Mendon Town Board’s failure to consent to the Project’s revised application, removal of PUD zoning from the Code, termination of the 2006 Sewer Agreement, failure to approve the 2018 Sewer Agreement, and determination that the parcel was no longer zoned for PUD. Petitioners also sought damages and attorneys’ fees pursuant to 42 USC 1983 and 1988 for violations of due process and equal protection.

 The Supreme Court, Monroe County, granted Petitioners’ petition-complaint in-part, and issued a judgment which, among other things, (i) declared the parcel remained zoned for PUD, (ii) annulled the amendment of the Code to remove PUD zoning,[1] (iii) directed the Mendon Town Board to review Petitioners’ revised application under the Code that existed at the time of submission, (iv) vacated the Mendon Town Board’s rejection of the 2018 Sewer Agreement as arbitrary and capricious, (v) determined the Mendon Town Board improperly terminated the 2006 Sewer Agreement, and (vi) granted Petitioners attorneys’ fees. The Mendon Town Board appealed from judgment, and the Appellate Division modified.[2]

C. The Appellate Division’s Decision

The Appellate Division affirmed the Supreme Court’s determinations holding the parcel remained zoned for PUD, the Mendon Town Board must review Petitioners’ revised application, and that the Mendon Town Board improperly terminated the 2006 Sewer Agreement. The Appellate Division, however, disagreed with the Supreme Court regarding the 2018 Sewer Agreement and the award of attorneys’ fees.

1. The Parcel’s Zoning Did Not Revert

The Appellate Division rejected the Mendon Town Board’s claim that the parcel automatically reverted from PUD to RA-5 when Ryan Homes ceased working on the Project. Zoning regulations must be strictly construed against the municipality, and any ambiguity must be resolved in favor of the property owner. The zoning instruments (e.g. ordinance, zoning map, etc.) must clearly set forth the possibility of a parcel’s automatic reversion to a prior designation. When deciding whether zoning instruments contain the requisite clear language, Courts construe the entire ordinance as a whole, reading all of its parts together to determine the legislative intent and avoid rendering its language superfluous. Even where automatic reversion language is clear, notice and a public hearing are required before the reversion may be confirmed by the legislative body.

Here, the Appellate Division concluded the parcels’ zoning never automatically reverted because the zoning instruments did not contain any express language warning Petitioners that the PUD zoning would automatically revert if certain conditions were not met. Specifically, neither the ordinance rezoning the parcel from RA-5 to PUD nor the local law which effectuated the parcel’s zoning change on the zoning map expressly mentioned the possibility of automatic reversion. Accordingly, Petitioners were not sufficiently placed on notice of the possibility, so the parcel did not automatically revert to RA-5, and remained zoned for PUD.

2. The Mendon Town Board Must Review the Revised Application

The Appellate Division affirmed the Supreme Court’s decision to compel the Mendon Town Board to review Petitioners’ revised application because, under the applicable Code provision, the Mendon Town Board’s action is mandatory, not discretionary, and Petitioners had a clear legal right to the relief sought.

The applicable Code, former Section 200-17(G), provided, “if, in the site plan development, it becomes apparent that certain elements of the sketch plan are unfeasible and in need of significant modification, the applicant shall then present a proposed solution to the Planning Board as the preliminary site plan.” The Code also provided that, after a proposed solution is approved by the Planning Board, it shall so notify the Town Board, at which point the preliminary site plan approval may then be given only with the consent of the Town Board.

The Mendon Town Board argued it was not required to review Petitioners’ revised application because Petitioners did not submit it to the Mendon Town Board in the form of a preliminary site plan, but rather as a sketch plan. Petitioners argued the Mendon Planning Board issuance of a favorable report on their revised sketch plans in June 2018 required the Mendon Town Board to review the revised application.

The Appellate Division held the Code was ambiguous, resolved the ambiguity in favor of Petitioners, and held, under former Section 200-17(G), Petitioners’ revised sketch plans submitted to the Mendon Planning Board effectively served a preliminary site plan. Further, upon the Mendon Planning Board’s issuance of a favorable report, the Mendon Town Board became obligated to review Petitioners’ revised application for approval; Petitioners were not required to submit a whole new preliminary site plan for review. Therefore, the Mendon Town Board had a clear, nondiscretionary obligation to consider the Mendon Planning Board’s favorable report and Petitioners’ revised application.

Notably, former Code Section 200-17(J) set forth procedures for submitted a revised application. The Appellate Division, however, held the Mendon Town Board was estopped from denying that former Code Section 200-17(G) applied because of the Mendon Town Board’s failure to dispel Petitioners’ reasonable belief that the latter section governed consideration of their revised application.

3. The 2006 Sewer Agreement Remains in Full Force and Effect

The Appellate Division affirmed the Supreme Court’s holding that the 2006 Sewer Agreement was not properly terminated.[3] The Appellate Division noted clear, complete writings should be enforced according to their terms, and, where the language of a contract is clear and unambiguous, interpretation of the contract and construction of its provisions are questions of law; Courts must ascertain the intent of parties from the plain meaning of the language employed, and give the terms their plain, ordinary, popular, and nontechnical meanings.

Here, the 2006 Sewer Agreement clearly and unambiguously provided it shall continue in full force and effect for 40 years and shall not be changed, modified or amended without a writing duly made, executed and acknowledged by the parties or their successors-in-interest. Therefore, Mendon could not unilaterally terminate the 2006 Sewer Agreement, it remained in full force and effect, and it allows the Project to be connected to Pittsford’s sewer system.

4. The Mendon Town Board’s Decision Not To Approve the 2018 Sewer Agreement Was Not Arbitrary and Capricious

The Appellate Division modified the Supreme Court’s vacatur of the Mendon Town Board determination not to approve the 2018 Sewer Agreement. Initially, the Appellate Division found the Mendon Town Board’s determination not to approve the 2018 Sewer Agreement was an exercise of its legislative power under N.Y. Town Law Section 64(6) – not an administrative decision (e.g. not subject to an Article 78 challenge); however, its validity was subject to review by virtue of Petitioners’ plenary action for declaratory relief vis-à-vis the determination.[4]

In evaluating the validity of the Mendon Town Board’s determination not to approve the 2018 Sewer Agreement, the Appellate Division analyzed whether the determination was arbitrary and capricious. The Appellate Division held the Mendon Town Board’s determination was not arbitrary and capricious because, in light of its general power to execute and award contracts on behalf of Mendon, the Mendon Town Board could decide that it did not want to purchase sewer services from a neighboring town.

5. No Attorneys’ Fees; Failure to Show Violations of Substantive Due Process or Equal Protection

The Appellate Division also modified the Supreme Court’s decision to award attorneys’ fees pursuant to 42 USC 1983 and 1988 for violation of Petitioners’ rights of substantive due process and equal protection.[5] Attorneys’ fees are recoverable under 42 USC 1983 and 1988 where relief is sought on both State and Federal grounds, even where relief is awarded only on State grounds.

In the land use context, 42 USC 1983 protects against municipal actions that violate a property owner’s right to due process and equal protection. Attorneys’ fees may be awarded if the constitutional claim is substantial and arises out of a common nucleus of operative facts as the State claim. The Appellate Division held Petitioners’ were not entitled to attorneys’ fees because their federal due process and equal protections claims were insubstantial.

i. Petitioners’ Failed to Establish a Substantive Due Process Claim

There is two-part test for substantive due process violations. First, the plaintiff must establish a cognizable property interest (i.e. vested property interest), or more than a mere expectation or hope to obtain approval (i.e. a legitimate claim of entitlement to obtain approval; virtually assured approval). Second, the plaintiff must establish governmental action was wholly without legal justification. Here, the Appellate Division held Petitioners failed to show certainty or a very strong likelihood that their application would have been granted. The Mendon Town Board retained significant discretion in ultimately approving or denying the Project, so Petitioners did not have clear entitlement to approval. The Appellate Division declined to reach the second part of the test.

ii. Petitioners Failed to Establish an Equal Protection Claim

Violation of equal protection also have a two-part test. First, the plaintiff must show selective treatment as compared to others similarly situated. Second, the plaintiff must show such treatment is based on impermissible considerations (e.g. malicious or bad faith intent to injure a person). Here, the Appellate Division held Petitioners failed to establish the parcel and the Project were similarly situated to any other property within Mendon. Accordingly, the Appellate Division found Petitioners’ substantive due process and equal protection claims were insubstantial, and were not entitled to attorneys’ fees.

D. Conclusion

Riedman navigates the complex nuances of land development projects, and provides noteworthy insights for interpreting and understanding municipal regulations and actions.

[1] The Appellate Division noted that because the Mendon Town Board did not argue on appeal against the Supreme Court’s nullification of the Mendon Town Board’s recodification of the Code to remove PUD zoning, PUD zoning is currently permitted by the Code. Accordingly, the Appellate Division held the Mendon Town Board’s argument that the Supreme Court erred in determining Petitioners revised application should be reviewed under the Code existing prior to recodification was rendered academic.

[2] The Supreme Court issued a supplemental judgment awarding Petitioners $41,090.00 in attorneys’ fees. The Mendon Town Board appealed form both judgments.

[3] The Appellate Division noted the Supreme Court’s judgment did not declare the rights of the parties with respect to the 2006 Sewer Agreement, so the Appellate Division modified the Supreme Court’s judgment by declaring the 2006 Sewer Agreement was not properly voided and remains in full force and effect.

[4] The Appellate Division noted that, ordinarily, the failure of a legislative body to exercise its powers is not subject to the review in the courts.

[5] The Appellate Division modified appeal from the judgment and reversed the supplemental judgment.

Local Law 97 of New York City’s Climate Mobilization Act (the “Act”) is the City’s aggressive greenhouse gas emission reduction plan for buildings.  The City has published figures indicating that approximately 70% of greenhouse gas emissions are attributable to the City’s building stock.  The Act sets lofty emission reduction goals for existing buildings, with emission limits that become stricter over time.  Failure to comply with the Act, either in reporting building emissions or achieving emission limits could result in harsh penalties. Compliance with the Act, through benchmarking and implementation of emission reducing retrofits, will come at an initial capital expenditure for building owners (and potentially tenants).

The Act, which was signed into law on Earth Day 2019, establishes ambitious greenhouse gas reduction goals for covered buildings.  Specifically, the Act seeks a 40% reduction in 2030, and 80% by 2050 in carbon emissions (relative to 2005 levels) through mandatory building emission limitations effective in 2024, 2030, and 2035.

The Act generally applies to buildings that exceed 25,000 square feet, with increased thresholds for certain multi-building lots and condos, and exemptions for certain building classes and uses.  The Act is estimated to impact between 40,000 and 50,000 buildings, comprising approximately 60% of the City’s square footage.

In 2024, the Act will require building owners to reduce emissions below a specific annual carbon emission limit.  An individual building’s carbon emission limit is calculated using prescribed building use/occupancy factors and the specific building’s square footage.  Covered buildings will be required to report certified emission reports by May 1, 2025 and each May 1st thereafter.  Failure to meet the yearly emission limit will result in fines of $268 per ton over the building’s annual emission limit.

In addition to retrofitting and other efficiency measures, the Act authorizes the use of renewable energy credits (“RECs”) to off-set greenhouse gas emissions.  However, the Act limits qualifying RECs to those that are generated in, or deliverable to, the City’s electric grid.  This limitation significantly compromises the use of RECs as a compliance tool due to the current lack of a compliant REC supply and the incredible demand for such RECs anticipated to be triggered by the Act.

In response to concerns related to the anticipated financial burden imposed on building owners and tenants by the Act, the State as part of its 2022 budget proposal, attempted to expand the availability of compliant RECs to those generated at renewable energy projects outside of the City.  The proposal failed after interest groups advocated that expanding the availability of RECs beyond those tied to the City would frustrate the purpose of the Act.  Despite the ultimate failure, the proposal signals the search for potential relief measures.  As the May 1, 2025 certified emission reporting deadline looms, it will be interesting to see whether any relief to the Act can be agreed upon.

In May, the New York City Department of Buildings released its NYC Sustainable Buildings website touted as a one-stop shop for owners and property managers of buildings covered by the Act.  The website links to certain financing and technical tools to assist in reducing the compliance burden imposed by the Act.

For more information regarding the Act, please contact your local Farrell Fritz team of land use, environmental and real estate attorneys and professionals.


The Suffolk County legislature is currently considering a bill (I.R. 1478-2021) that would provide towns and villages with a greater opportunity to weigh in on certain zoning applications proposed in adjacent municipalities as part of the formal County review process pursuant to General Municipal Law § 239-m and Article XIV of the Suffolk County Administrative Code.  The proposed legislation is in response to public interest in large-scale development projects with cross-border implications.

The bill, sponsored by Legislator Kara Hahn (D-Setauket), notes that towns and villages are currently required to refer certain zoning actions affecting real property lying within 500 feet of the boundary of any neighboring town or village to the Suffolk County Planning Commission for review and recommendation pursuant to state and county law.  In the case of proposed zoning laws and amendments, the Planning Commission is required to provide notice to the Clerk of the adjacent municipality and that municipality may interpose an objection.  Following a public hearing, the Planning Commission may vote to disapprove the proposed zoning legislation by a two-thirds vote of its members.  The proposed County legislation seeks to extend this process to other types of zoning actions

If adopted, no zoning ordinance or local law, special permits, variances in connection with single-family residences on lots which are not over 2 acres in size, subdivisions, or site plans adopted or approved by any town or village in the County would take effect unless said zoning action has been submitted to and approved by the Planning Commission. Upon submission of the zoning action to the Planning Commission, the Commission must promptly give written notice thereof to the Clerk of any town or village adjacent to the area which is the subject of the zoning action.  The zoning action will be deemed to have been approved unless, within 45 days after the same has been filed with the Planning Commission, a municipality adjoining the boundary involved interposes an objection by resolution of its policy-making body within 20 days of the date the action has been filed with the Planning Commission and a resolution disapproving it is adopted by a two-thirds vote of the Commission’s members after a public hearing.

Under the proposed law, the Planning Commission must give at least seven days’ prior written notice of any public hearing to the Clerk of the adjoining municipality and notify all County departments, offices and agencies, including the Clerk of the Legislature, who shall forward such notice to all County legislators.  Any County department, office or agency which possesses information related to such zoning action shall immediately forward such information to the County Planning Commission.

In the event that the Planning Commission renders a resolution disapproving the application, the referring municipality may decline to adopt the Commission’s resolution and approve the action as originally applied for, but only upon an affirmative vote of a majority plus one of the entire membership of the referring body that explicitly sets forth its reasons for not approving the Planning Commission’s resolution.

Proponents of the local law are likely to view the input from adjacent municipalities on significant land use matters as a step toward regional planning, which has proven to be successful in many states, but is virtually non-existent in New York.  Opponents of the law will perceive it as an affront to the concepts of home rule and self-governance that are deeply entrenched in our State constitution.

The proposed legislation presents a classic “what goes around comes around” situation for towns and villages in Suffolk County. On one hand, it would give municipalities an opportunity to voice their concerns and provide input on land use matters in adjacent municipalities. On the other hand, however, their own land use decisions would now be susceptible to criticism and opposition from neighboring communities.

The proposed local law is presently pending before the County legislature’s Economic Development, Planning & Housing Committee and, if approved by the Committee, will be subject to a public hearing before the full legislature.  Thereafter, if a majority of the legislators vote to enact the proposed law, it will be presented to the County Executive for his signature.